Perfumery vouchers as an incentive with dental products?

The Medicines Advertising Act (Heilmittelwerbegesetz) sets out the conditions under which advertising for, amongst other things, medicines and medical devices is permissible. The Higher Regional Court Karlsruhe (OLG Karlsruhe) had to examine these conditions in a case in which dental products were advertised to dentists – namely with the provision of perfumery vouchers. Is such advertising lawful?

A dealer in dental products advertised to dentists and laboratories that they would receive a shopping voucher redeemable at one of the branches of a perfumery chain upon purchasing dental products worth at least EUR 150.00.

The Competition Centre (Wettbewerbszentrale) considers this advertising campaign to be unlawful. It sees therein a breach of the Medicines Advertising Act (Heilmittelwerbegesetz) and therefore filed a lawsuit – with success.

The court's decision on the advertising campaign

The OLG Karlsruhe prohibited the dental dealer from running said advertising by judgment of 17.06.2016 – Az. 4 U 215/15.

The court based its decision on the grounds that the dental business operator was in breach of the prohibition on incentives in the Medicines Advertising Act (Heilmittelwerbegesetz).

Under this provision, advertising incentives for members of the medical professions are only permissible if they are intended for use in the medical, veterinary or pharmaceutical practice. However, the vouchers lacked any functional connection to the exercise of the dentist's profession. They would not typically serve the purpose of the dental practice.

Conclusion

The decision confirms that advertising incentives to doctors and dentists are only permitted under strict conditions.